Court Filing
Electronically Filed 3/24/2025 2:32 PM Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court By: Jennifer Keyes, Deputy Clerk LATAH COUNTY PROSECUTOR'S OFFICE WILLIAM W. THOMPSON, JR., ISB No. 2613 PROSECUTING ATTORNEY ASHLEY S. JENNINGS, ISB No. 8491 SENIOR DEPUTY PROSECUTOR Latah County Courthouse 522 S. Adams Street, Ste. 211 Moscow, ID 83843 Phone: (208) 883-2246 paservice@latahcountyid.gov IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA STATE OF IDAHO, Case No. CR01-24-31665 Plaintiff, STATE'S REPLY TO DEFENDANT'S OBJECTION TO STATE'S MOTION IN LIMINE V. RE: 911 CALL BRYAN C. KOHBERGER, Defendant. COMES NOW the State of Idaho, by and through the Latah County Prosecuting Attorney, and respectfully replies to the “ Defendant's Objection to State's Motion in Limine Re: 911 Call " filed on March 17, 2025. Defendant relies on DM's and BF's actions from the night before to support his argument that the statements on the 911 call cannot be excited utterances or present sense impressions. This is misplaced. The excitement leading up to and during the 911 call was not caused solely STATE'S REPLY TO DEFENDANT'S OBJECTION TO STATE'S MOTION IN LIMINE RE: 911 CALL 1 from seeing a male in the home the night before (while that was assuredly a startling event), but from discovering moments earlier that their roommate and / or friend was not waking up. This is in addition to also realizing that none of the other victims in the home were responding. The entire call should be admitted through the excited utterance exception to the rule against hearsay. However, if the Court breaks down each statement made on the call, the entire call would be admitted as each statement is either an excited utterance, a present sense impression, or is nonhearsay as shown below: Transcript Page Statement Authority for Admission and Line (s) Page 3, Lines 4-5 911 OPERATOR: 911, location of Non-hearsay. Not for the truth of your emergency. the matter asserted. Page 3, Lines 6-8 BF: Hi, something is happening. Present Sense Impression. This Something's happened in our house statement was made minutes after and we don't know what. HJ has responded to the scene and instructed residents to call 911. Page 3, Lines 9-10 911 OPERATOR: What is the Non-hearsay. Not for the truth of address of the emergency? the matter asserted. Page 3, Line 11 BF: 1122... Non-hearsay. Not for the truth of the matter asserted. Present sense impression. Page 3, 911 OPERATOR: What is the rest of | Non-hearsay. Not for the truth of Lines 12-13 the address? the matter asserted. Page 3, Line 14 BF: Oh, King Road. Non-hearsay. Not for the truth of the matter asserted. Present sense impression. Page 3, 911 OPERATOR: Okay. And is that Non-hearsay. Not for the truth of Lines 15-16 a house or an apartment? the matter asserted. Page 3, Line 17 BF: It's a house. Non-hearsay. Not for the truth of the matter asserted. Present sense impression. Page 3, Lines 18- 911 OPERATOR: Can you repeat the Non-hearsay. Not for the truth of 19 address to make sure that I have it the matter asserted. right? STATE'S REPLY TO DEFENDANT'S OBJECTION TO STATE'S MOTION IN LIMINE RE: 911 CALL 2 Page 3, Lines 20- FEMALE SPEAKER: I'll talk to you Present Sense Impression 21 as we're -- [inaudible], so we are next to them. Page 3, Lines 22- 911 OPERATOR: I need someone to Non-hearsay. Not for the truth of 23 repeat the address for verification. the matter asserted. Page 3, Lines, 24- FEMALE SPEAKER: So the Non-hearsay. Not for the truth of 25 address, 1122 King Road. the matter asserted. Present sense impression. Page 4, Lines 1-2 911 OPERATOR: And what's the Non-hearsay. Not for the truth of phone number that you're calling the matter asserted. from? Page 4, Line 3 FEMALE SPEAKER: What's your Non-hearsay. Not for the truth of phone number? the matter asserted. Page 4, Line 4 BF: [redacted] Non-hearsay. Not for the truth of the matter asserted. Present sense impression. Page 4, Line 5 FEMALE SPEAKER: [redacted] Non-hearsay. Not for the truth of the matter asserted. Page 4, Line 6 BF: [redacted] Non-hearsay. Not for the truth of the matter asserted. Page 4, Line 7 FEMALE SPEAKER: [redacted] -- Non-hearsay. Not for the truth of what's the rest? the matter asserted. Page 4, Line 8 BF: [redacted] Non-hearsay. Not for the truth of the matter asserted. Page 4, Line 9 FEMALE SPEAKER: [redacted]. Non-hearsay. Not for the truth of the matter asserted. Page 4, Lines 10- 911 Operator: Okay. And tell me Non-hearsay. Not for the truth of 11 exactly what's going on. the matter asserted. Page 4, Lines 12- FEMALE SPEAKER: One of our Present Sense Impression. 14 one of the roommates is passed out and she was drunk last night and she's not waking up. Page 4, Line 15 911 OPERATOR: Okay. Non-hearsay. Not for the truth of the matter asserted. Page 4, Lines 16- FEMALE SPEAKER: Oh, and they Excited Utterance and Present 17 saw some man in their house last Sense Impression. DM is in the night. background relaying information. STATE'S REPLY TO DEFENDANT'S OBJECTION TO STATE'S MOTION IN LIMINE RE: 911 CALL 3 DM is under the current excitement of realizing that her roommate is not waking up (after HJ responded to the scene) and something could be wrong in the house. In response she tries to tell her friend what she saw. The friend is relaying that information to dispatch. Page 4, Line 18 911 OPERATOR: And are you with Non-hearsay. Not for the truth of the patient? the matter asserted. Page 4, Line 19 DM: Hi, this is D. Present Sense Impression or Nonhearsay. Not for the truth of the matter asserted. Page 4, Lines 20- 911 OPERATOR: Okay. I need Non-hearsay. Not for the truth of 21 someone to keep the phone, stop the matter asserted. passing it around. Page 4, Lines 22- DM: Can I just tell you what Non-hearsay. Not for the truth of 23 happened, pretty much? the matter asserted. Page 4, Lines 24- 911 OPERATOR: What is going on, Non-hearsay. Not for the truth of 25 currently? Is someone passed out the matter asserted. right now? Page 5, Lines 1-2 DM: I don't really know, but pretty Excited Utterance and Present much at 4:00 a.m. Sense Impression. DM is under the current excitement of realizing that her roommate is not waking up (after HJ responded to the scene) and something could be wrong in the house. In response she tries to tell the dispatcher what she saw the night before. Page 5, Lines 3-5 911 OPERATOR: Okay. I need to Non-hearsay. Not for the truth of know what's going on right now, if the matter asserted. someone is passed out. Can you find that out? Page 5, Lines 6-8 DM: Yeah, I'll come come on, B. Non-hearsay. Not for the truth of We got to go check. But we have to. the matter asserted. Is she passed out? STATE'S REPLY TO DEFENDANT'S OBJECTION TO STATE'S MOTION IN LIMINE RE: 911 CALL 4 (Background noise.) Page 5, Lines 10- DM: [Inaudible] what's wrong? Present sense impression. 11 She's not waking up. Excited utterance. Page 5, Lines 12 HJ: Xana. Present sense impression. Page 6, Lines 13- 911 OPERATOR: Okay. One Non-hearsay. Not for the truth of 14 moment. I'm getting help started that the matter asserted. way. Page 5, Lines 15- DM: Okay. Thank you. Non-hearsay. Not for the truth of 17 What's wrong? the matter asserted. (Background noise.) Page 5, Line 18 HJ: [Inaudible]. Non-hearsay. Not for the truth of the matter asserted. Page 5, Line 19 911 OPERATOR: Okay. And how Non-hearsay. Not for the truth of old is she? the matter asserted. Page 5, Line 20 DM: She's 20. Non-hearsay. Not for the truth of the matter asserted. Present sense impression. Page 5, Line 21 911 OPERATOR: Twenty, you said? Non-hearsay. Not for the truth of the matter asserted. Page 5, Lines 22- DM: Yes, 20. Here, talk to Non-hearsay. Not for the truth of 23 them. the matter asserted. Present sense impression. Page 5, Line 24 HJ: Hello? Hello? Non-hearsay. Not for the truth of the matter asserted. Page 5, Line 25; 911 OPERATOR: Okay. I need Non-hearsay. Not for the truth of Page 6, Lines 1-2 someone to stop passing the phone the matter asserted. around because I've talked to four different people. Page 6, Lines 3-4 HJ: Okay. Sorry. They just gave me Non-hearsay. Not for the truth of the phone. the matter asserted. Present sense impression. Page 6, Line 5 911 OPERATOR: Is she breathing? Non-hearsay. Not for the truth of the matter asserted. Page 6, Line 6 HJ: She's [inaudible]. Hello? Non-hearsay. Not for the truth of the matter asserted. Page 6, Line 7 911 OPERATOR: Is she breathing? Non-hearsay. Not for the truth of the matter asserted. Page 6, Line 8 HJ: No. Present sense impression. STATE'S REPLY TO DEFENDANT'S OBJECTION TO STATE'S MOTION IN LIMINE RE: 911 CALL 5 Excited utterance. Page 6, Lines 9-10 911 OPERATOR: Okay. Non-hearsay. Not for the truth of the matter asserted. (Police radio.) Page 6, Lines 11- HJ: That's [inaudible]. D, I need you Present sense impression. 13 to talk to them. I can't talk to them. I need you to talk to them. Page 6, Line 14 DM: Okay. Hello? Non-hearsay. Not for the truth of the matter asserted. Page 6, Line 15-16 911 OPERATOR: Okay. I have Non-hearsay. Not for the truth of already sent the ambulance and law the matter asserted. enforcement. Stay on the line. Page 6, Line 17 DM: Okay. Non-hearsay. Not for the truth of the matter asserted. Present sense impression. Page 6, Lines 18- 911 OPERATOR: If there's a Non-hearsay. Not for the truth of 20. defibrillator available, send someone the matter asserted. to get it now and tell me when you have it. Page 6, Lines 21- DM: Say that again. There's a police Present sense impression. 22 here right now. Page 6, Lines 23- 911 OPERATOR: Okay. If there's a Non-hearsay. Not for the truth of 25 defibrillator available, send someone the matter asserted. to get it now and tell me when you have it. Page 7, Lines 1-2 DM: We don't have one. Do you have Present sense impression. a defibrillator? Page 7, Line 3 OFFICER NUNES: Yep. Present sense impression. Page 7, Line 4 DM: Yes, we have one. Present sense impression. Page 7, Lines 5-6 911 OPERATOR: Okay. Are you Non-hearsay. Not for the truth of talking to the officer? the matter asserted. Page 7, Line 7 DM: Yes, he's right here. Present sense impression. STATE'S REPLY TO DEFENDANT'S OBJECTION TO STATE'S MOTION IN LIMINE RE: 911 CALL 6 Page 7, Lines 8-9 911 OPERATOR: Okay. I'm going to Non-hearsay. Not for the truth of let you go since he's there with you the matter asserted. and can help you. Page 7, Line 10 DM: Okay. Thank you. Bye Non-hearsay. Not for the truth of the matter asserted. Page 7, Lines 11- 911 OPERATOR: Okay. Non-hearsay. Not for the truth of 12 the matter asserted. (End of audio.) Defendant's Transcript of 911 Call attached as States Exhibit S-1. The State does not object to the use of Defendant's certified transcript of the 911 call. Based on above, the State motions the Court to admit the recordings and transcripts of the 911 call to Whitcom on November 13, 2022, immediately following the discovery of Xana Kernodle unresponsive at 1122 King Road. RESPECTFULLY SUBMITTED this 24th day of March 2025. askeup & gurisp Ashley S. Jennings Sr. Deputy Prosecuting Attorney STATE'S REPLY TO DEFENDANT'S OBJECTION TO STATE'S MOTION IN LIMINE RE: 911 CALL 7 CERTIFICATE OF DELIVERY I hereby certify that true and correct copies of the STATE'S REPLY TO DEFENDANT’S OBJECTION TO STATE'S MOTION IN LIMINE RE: 911 CALL were served on the following in the manner indicated below: Anne Taylor Mailed Attorney at Law E-filed & Served / E-mailed PO Box 2347 Faxed Coeur D Alene, ID 83816 Hand Delivered Dated this 24th day of March 2025. Sereng STATE'S REPLY TO DEFENDANT'S OBJECTION TO STATE'S MOTION IN LIMINE RE: 911 CALL 8 1 STATE OF IDAHO,) ) 2 VS.) Case No. CR29-22-2805 ) 3 BRYAN C. КОНBERGER) 4 5 6 7 8 TRANSCRIPTION OF AUDIO FILE 9 ENTITLED 10 22-M09903 911 call 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 001262 1 INDEX 2 3 TRANSCRIPTION OF AUDIO / VIDEO: PAGE 4 22-M09903 911 call 3 5 6 7 SPEAKERS ON AUDIO: 8 911 Operator 9 B ██████ F █████ 10 D ████ M ████████ 11 Female Speaker 12 H █████ ███████ 13 Officer Nunes 14 15 16 17 18 19 20 21 22 23 24 25 2 001263 1 22-M09903 911 call 2 TRANSCRIPTION 3 --000-- 4 911 OPERATOR: 911, location of your 5 emergency. 6 B ███████ ████: Hi, something is happening. 7 Something's happened in our house and we don't know 8 what. 9 911 OPERATOR: What is the address of the 10 emergency? 11 B ██████ █████: 1122... 12 911 OPERATOR: What is the rest of the 13 address? 14 B ███████ F ████: Oh, King Road. 15 911 OPERATOR: Okay. And is that a house or 16 an apartment? 17 B ██████ E ████: It's a house. 18 911 OPERATOR: Can you repeat the address to 19 make sure that I have it right? 20 FEMALE SPEAKER: I'll talk to you as we're 21 [inaudible), so we are next to them. 22 911 OPERATOR: I need someone to repeat the 23 address for verification. 24 FEMALE SPEAKER: So the address, 1122 King 25 Road. 3 001264 1 911 OPERATOR: And what's the phone number 2 that you're calling from? 3 FEMALE SPEAKER: What's your phone number? 4 B ███████ F █████ ████ 5 FEMALE SPEAKER: █████ 6 B ██████ █████ █████████ 7 FEMALE SPEAKER: █████ what's the rest? 8 B ███████ F █████ █████ 9 FEMALE SPEAKER: ██████ 10 911 OPERATOR: Okay. And tell me exactly 11 what's going on. 12 FEMALE SPEAKER: One of our one of the 13 roommates is passed out and she was drunk last night and 14 she's not waking up. 15 911 OPERATOR: Okay. 16 FEMALE SPEAKER: Oh, and they saw some man in 17 their house last night. 18 911 OPERATOR: And are you with the patient? 19 D █████ M █████████ Hi, this is D █████ 20 911 OPERATOR: Okay. I need someone to keep 21 the phone, stop passing it around. 22 D █████ M █████████: Can I just tell you what 23 happened, pretty much? 24 911 OPERATOR: What is going on, currently? 25 Is someone passed out right now? 4 001265 1 █████ M █████████ I don't really know, but 2 pretty much at 4:00 a.m. 3 911 OPERATOR: Okay. I need to know what's 4 going on right now, if someone is passed out. Can you 5 find that out? 6 █████ M █████████: Yeah, I'll come come on, 7 B ███████ We got to go check. But we have to. Is she 8 passed out? 9 (Background noise.) 10 █████ M ████████: [Inaudible) what's wrong? 11 She's not waking up. 12 H █████ J ███████: Xana. 13 911 OPERATOR: Okay. One moment. I'm getting 14 help started that way. 15 █████ M ████████: Okay. Thank you. 16 What's wrong? 17 (Background noise.) 18 H ██████ J ██████: [Inaudible]. 19 911 OPERATOR: Okay. And how old is she? 20 Π █████ M █████████ She's 20. 21 911 OPERATOR: Twenty, you said? 22 D █████ M █████████: Yes, 20. Here, talk to 23 them. 24 H ██████ J ██████: Hello? Hello? 25 911 OPERATOR: Okay. I need someone to stop 5 001266 1 passing the phone around because I've talked to four 2 different people. 3 H ██████ J ██████: Okay. Sorry. They just gave 4 me the phone. 5 911 OPERATOR: Is she breathing? 6 H ██████ J ███████ She's [inaudible]. Hello? 7 911 OPERATOR: Is she breathing? 8 H ██████ J ██████: No. 9 911 OPERATOR: Okay. 10 (Police radio.) 11 H █████ J ██████: That's [inaudible]. █████ I 12 need you to talk to them. I can't talk to them. I need 13 you to talk to them. 14 D ████ M ████████: Okay. Hello? 15 911 OPERATOR: Okay. I have already sent the 16 ambulance and law enforcement. Stay on the line. 17 D █████ M █████████ Okay. 18 911 OPERATOR: If there's a defibrillator 19 available, send someone to get it now and tell me when 20 you have it. 21 D █████ M ████████: Say that again. There'sa 22 police here right now. 23 911 OPERATOR: Okay. If there's a 24 defibrillator available, send someone to get it now and 25 tell me when you have it. 6 001267 1 █████ M █████████: We don't have one. Do you 2 have a defibrillator? 3 OFFICER NUNES: Yep. 4 D ████ M █████████: Yes, we have one. 5 911 OPERATOR: Okay. Are you talking to the 6 officer? 7 D █████ M ████████ Yes, he's right here. 8 911 OPERATOR: Okay. I'm going to let you go 9 since he's there with you and can help you. 10 D █████ M ████████: Okay. Thank you. Bye. 11 911 OPERATOR: Okay. 12 (End of audio.) 13 14 15 16 17 18 19 20 21 22 23 24 25 7 001268 1 STATE OF IDAHO) ) TRANSCRIBER'S CERTIFICATE 2 COUNTY OF KOOΤΕΝΑΙ) 3 4 I, KERI VEARE, do hereby certify: 5 That I am a notary public of the State of 6 Idaho, that I am a Certified Shorthand Reporter of the 7 State of Idaho, License No. 675, 8 That I transcribed, to the best of my ability, 9 the foregoing proceeding from an electronic recording, 10 and that the above and foregoing transcript is a full, 11 true, and correct record of said proceeding, except 12 where indicated as inaudible. 13 I FURTHER CERTIFY that I am not interested in 14 the outcome of said matter nor connected with or related 15 to any of the parties of said matter or to their 16 respective counsel. 17 Dated this 11th day of May, 2023. 18 19 Kerij Veare 20 21 KERI VEARE Court Reporter / Transcriber 22 IDAHO CSR 675, CRR, RPR 23 24 25 8 001269